Guarantee legal counsel for unaccompanied immigrant children

Sara Buckingham

We must guarantee legal counsel for unaccompanied immigrant children in the U.S.

The past month, our eyes have been glued to the Syrian refugee crisis after a photograph of Aylan, a 3-year-old boy who died trying to seek refuge in Europe, surfaced. Although we often do not speak of it, similar circumstances kill children seeking refuge in our country daily. Those who survive the journey face a harsh reality across the border.

Imagine that Aylan survived and was fleeing with his brother to the United States. Upon entering our country, he would have to face off with a federal prosecutor on his own, plead to charges, tell what forms of protection he wished to pursue, file them and supporting documents, testify and call witnesses. This scene might be hard to imagine, but it is far from fiction; it takes place in immigration courts across our country. "Unaccompanied alien children" must make a legal case that they merit protection from deportation without the right to appointed legal counsel. This must change. We must guarantee legal counsel for unaccompanied children.

"Unaccompanied alien children" have no lawful immigration status, are under age 18 and have no legal guardians in the U.S. to provide custody. There are many in our communities: 68,434 in 2014.

Children can seek protection in our country from persecution, abuse, neglect, abandonment and human trafficking. A recent report conducted by the United Nations found that 58 percent of these children merit international protection. However, between 2005 and 2014, only 27 percent of children in immigration court were provided protection from deportation.

Why are so few children protected under our legal system? Few understand how to request protection. When they do, children must be developmentally, educationally and linguistically sophisticated to explain why they merit protection in an adversarial court system. Research shows us that children — and even teenagers— often do not understand the purpose of hearings, the legal system and case proceedings. Further, they have difficulty making legal arguments and providing testimony on their own because they do not know what is needed, feel socially pressured to answer questions they do not understand, and they are still learning how to recount their experiences.

Trauma also impacts testimony if not explored effectively, so children's experiences — which establish their cases to remain in this country — are likely not examined effectively by a prosecutor.

We know that children are fundamentally different from adults and have changed our other court systems accordingly. These children are no different. We know the consequences of criminal convictions are grave and thus appoint legal counsel. These children's consequences are no less grave; their lives are often literally at stake.

Research shows that children as young as three can provide accurate accounts of their experiences if questioned in a responsible manner. The federal government should consequently guarantee well-trained legal counsel for unaccompanied children to ensure their stories are told and rights are protected. Congress agrees; members directed Health and Human Services to ensure provision of legal counsel to unaccompanied children "to the greatest extent practicable," but stopped short of guaranteeing and funding it. A recent U.S. District Court case in Washington gives us reason to doubt the constitutionality of this decision. While some legal service providers and the administration's new AmeriCorps program of 100 lawyers and paralegals provide pro-bono counsel, they cannot keep up with demand. As of July 2014, 69 percent of unaccompanied children with pending cases had no representation.

Quality legal representation is an effective first step in justly treating unaccompanied children. When represented, children's cases are communicated more effectively and we come closer to protecting the 58 percent of unaccompanied children the United Nations believes merit protection. Of the court cases between 2005 and 2014, 47 percent of unaccompanied children with legal representation were granted protection. Only 10 percent of unrepresented children were allowed the same. Immigration courts currently receive less than 2 percent of the funding allocated to Customs and Border Protection and Immigration and Customs Enforcement.

Providing legal counsel is a human rights issue, and one we can afford by reconsidering our priorities. It's time to protect our nation's most vulnerable.

Sara Buckingham is a Ph.D. candidate in clinical psychology and community and applied social psychology at the University of Maryland, Baltimore County. Her email is sara.l.buckingham@umbc.edu.